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POLITICAL  SAFEGUARDS  AND  JUDICIAL 
GUARANTIES. 


W.  F.  DODD, 

t  ' 

University  of  Illinois. 


Reprinted  from  the  Columbia  Law  Review, 


April,  1915. 


Digitized  by  the  Internet  Archive 
in  2018  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/politicalsafegua00dodd_0 


A 

POLITICAL  SAFEGUARDS  AND  JUDICIAL 
GUARANTIES. 

Government  still  exists  primarily  for  the  protection  of  certain 
interests  of  those  who  are  governed.  The  character  of  the  rights 
to  be  protected  changes  with  the  social  and  industrial  organization, 
and  rights  which  under  one  condition  deserve  protection,  under 
another  must  properly  give  way  to  the  interests  of  the  community 
at  large.  In  no  country  has  there  ever  been  drawn  a  hard  and 
fast  line  separating  rights  properly  individual  from  matters  subject 
to  governmental  regulation,  and  so  long  as  society  is  dynamic  no 
such  line  can  be  drawn.  Yet  at  any  one  time  certain  rights  may 
properly  be  recognized  as  requiring  protection,  and  with  a  society 
as  we  now  know  it,  the  institution  of  private  property  and  certain 
individual  actions  (as  freedom  of  speech,  of  the  press,  etc.)  may 
be  regarded  as  such  rights.  Whether  ‘we  agree  or  not  as  to  its 
precise  limits,  there  should  be  a  sphere  of  individual  action  free 
from  governmental  control.  But  the  limits  of  such  a  sphere  are 
changing  and  the  safeguarding  of  the  interests  which  now  demand 
protection  must  not  unduly  block  readjustments  rendered  necessary 
by  new  social  and  industrial  conditions.  This  is,  in  effect,  the 
problem  presented  in  connection  with  the  safeguarding  of  indi¬ 
vidual  rights.  Were  the  same  rights  at  all  times  specific,  perma¬ 
nent  and  clearly  definable,  their  protection  would  not  be  difficult, 
and  their  delimitation  once  for  all  as  free  from  governmental 
action  would  not  be  improper. 

This  discussion  deals  with  the  safeguarding  of  individual  rights 
or  interests,  and  it  must  be  borne  in  mind  that  each  new  generation 
of  a  growing  society  re-defines  in  terms  of  its  own  need  the  limits 
between  individual  right  and  governmental  regulation.  In  the 


2 


COLUMBIA  LAW  REVIEW. 


discussion  of  individual  rights  it  should  also  be  remembered  that 
what  the  advocates  of  individual  safeguards  ordinarily  have  in 
mind  is  a  safeguard  of  property  rather  than  of  personal  rights. 

Before  discussing  types  of  safeguards  it  will  be  worth  while  to 
consider  just  what  we  may  mean  by  constitutional  or  other  safe¬ 
guards  of  individual  rights.  As  to  this  matter  there  are  two  dis¬ 
tinct  points  of  view.  One  group  of  writers  claims  that  the  safe¬ 
guard  must  be  against  democracy  itself.  This  view  is  represented 
among  English  authors  by  Mr.  W.  S.  McKechnie.1  Mr.  Mc- 
Kechnie’s  argument  as  to  England  runs  somewhat  as  follows :  The 
political  dominance  has  passed  to  the  non-property  owning  classes, 
who  are  primarily  interested  in  increased  governmental  expense, 
such  as  that  with  reference  to  old  age  pensions,  unemployment 
insurance,  etc.  These  classes,  not  paying  taxes,  but  receiving  the 
benefits  of  taxation,  will  if  in  complete  control  operate  the  gov¬ 
ernment  in  their  own  interests,  and  in  the  long  run  cripple  or 
destroy  the  propertied  classes — the  more  provident  classes  of  the 
community.  A  safeguard  of  some  sort  is  therefore  desirable  to 
protect  property  from  a  democratic  government.  This  view  is  not 
always  on  the  surface  in  England  and  the  United  States,  but  is 
implicit  in  much  of  the  discussion  of  the  subject. 

The  argument  for  safeguards  against  democracy  has  some 
basis.  The  electorate  is  primarily  interested  in  tax  spending  and 
the  interests  of  the  majority  are  to  some  extent  opposed  to  the 
interests  of  the  property-owning  classes.  So  long  as  governmental 
issues  are  political,  the  members  of  a  minority  have  the  possibility 
of  becoming  part  of  a  later  majority.  But  when  the  issues  are 
industrial,  the  property-owning  classes  may  become  a  permanent 
minority  whose  interests  are  not  adequately  protected  by  purely 
political  means.  And  yet  such  interests  in  the  last  resort  must 
depend  for  protection,  not  upon  artificial  barriers  which  the  people 
themselves  may  remove,  even  though  with  difficulty,  but  upon 
the  sentiment  of  those  who  control  the  governmental  organization. 

Another  view,  more  often  expressed,  is  the  view  that  safe¬ 
guards  are  necessary  to  make  sure  that  what  is  claimed  to  be 
popular  opinion  actually  is  so.  Professor  A.  V.  Dicey  represents 
this  view.  He  says :  “A  constitutional  safeguard  means  under 
any  form  of  popular  and  parliamentary  government  (such  as  exists, 

HTe  New  Democracy  and  the  Constitution  (London,  John  Murray, 

1912). 


POLITICAL  SAFEGUARDS. 


3 


e.  g.  in  England,  in  the  United  States,  or  in  France),  any  law  or 
received  custom,  which  secures  that  no  change  in  the  constitution 
or  the  fundamental  laws  of  the  country  shall  take  place  until  it 
has  obtained  the  permanent  assent  of  the  nation.”2 

The  two  points  of  view  may  be  simply  illustrated :  The  Prus¬ 
sian  three-class  system  of  voting,  which  gives  a  predominant  influ¬ 
ence  to  the  highest  taxpayers,  may  easily  be  classed  as  a  safeguard 
against  democracy.  The  theory,  still  held  if  not  fully  effective  in 
England,  that  no  question  of  fundamental  importance  shall  be 
determined  by  Parliament  except  after  a  general  election  in  which 
the  matter  has  been  approved  by  the  country,  is  a  safeguard  of 
democracy,  not  a  safeguard  against  democracy.  In  this  discussion 
primary  attention  will  be  directed  to  the  safeguards  which  are  com¬ 
patible  with  the  notion  of  democratic  government.  The  whole 
tendency  has  been  toward  a  democratic  control,  and  such  a  con¬ 
trol  is  in  modern  governments  more,  rather  than  less  necessary, 
when  government  because  of  increasing  activity  is  becoming  more 
of  an  economic  or  social  problem  rather  than  a  purely  political  one. 
Any  limitation  which,  once  imposed,  is  practically  impossible  or 
very  difficult  to  remove,  is  in  fact  a  limitation  against  democracy. 
A  safeguard  of  individual  right  under  a  democratic  government 
is  one  which  assures  that  action,  when  taken,  represents  a  real 
popular  view — the  sober  and  considered  sentiment  of  the  com¬ 
munity. 

Safeguards  of  individual  right  may,  for  our  purposes,  be 
divided  into  two  classes:  (i)  safeguards  or  guaranties,  whether 
in  a  constitution  or  not,  which  are  not  judically  enforcible;  (2) 
safeguards  or  guaranties  which  are  judicially  enforcible.  Those  of 
the  first  class  may  for  the  purposes  of  our  discussion  be  called 
political  guaranties,  and  those  of  the  second  class  judicial  guaran¬ 
ties.  A  distinction  is  sometimes  made  between  political  guaranties 
on  the  one  side  and  constitutional  guaranties  on  the  other;  but 
many  constitutional  guaranties  are  not  judicially  enforcible,  and 
the  problem  of  greatest  interest  is  that  of  guaranties  or  safe¬ 
guards  not  judicially  enforcible  as  against  guaranties  or  safeguards 
that  are  judicially  enforcible.  Using  the  terms  as  just  defined  we 
may  well  consider  somewhat  in  detail  the  two  types  of  safeguards. 

2Rights  of  Citizenship,  with  preface  by  the  Marquess  of  Lands- 
downe  (London,  Warne,  1912)  p.  81.  A  similar  view  is  represented  by 
Mr.  A.  M.  Kales’  Unpopular  Government  in  the  United  States,  pp.  193-224. 


4 


COLUMBIA  LAW  REVIEW. 


i.  Political  safeguards. 

The  political  safeguards,  or  safeguards  of  which  judicial  enfor- 
cibility  does  not  constitute  an  essential  element,  may  for  con¬ 
venience  be  grouped  under  the  following  heads  : 

(1)  Suffrage  limitations,  whether  embodied  in  constitutions 
or  laws.  The  more  limited  the  suffrage  the  greater  the  influence 
of  propertied  classes  in  the  result  of  elections.  Somewhat  similar 
to  a  limited  suffrage  is  the  effect  of  an  apportionment  of  repre¬ 
sentatives  in  such  a  manner  as  to  give  greater  weight  to  certain 
elements  in  the  community. 

(2)  An  upper  house  based  largely  on  property,  hereditary,  or 
upper  class  interests.  Of  course  the  influence  of  such  a  house 
varies  with  its  actual  political  power,  being  very  great  for  the  Ger¬ 
man  Bundesrat  and  relatively  much  less  important  for  the  British 
House  of  Lords  since  the  Parliament  Act  of  1911. 

(3)  Checks  and  balances  of  government,  such  as  an  arrange¬ 
ment  that  each  law  shall  have  obtained  the  approval  of  two  houses 
and  of  the  executive.  Such  machinery  constitutes  a  safeguard 
upon  governmental  action,  even  though  the  members  of  both 
houses  and  the  executive  be  chosen  by  the  same  (and  by  a  demo¬ 
cratic)  electorate.  Of  this  type  of  safeguard  the  governments  in 
the  United  States  furnish  perhaps  the  best  example. 

(4)  Under  a  government  with  a  legislature  elected  on  a  popu¬ 
lar  basis,  the  referendum  constitutes  in  the  long  run  a  definite 
check  upon  the  legislature,  and  one  which  is  likely  in  many  cases 
to  operate  in  a  conservative  sense. 

(5)  A  safeguard  of  a  purely  political  type  presents  itself  in  the 
character  of  the  people  themselves.  England  with  a  democratic 
suffrage  still  keeps  the  actual  conduct  of  its  government  in  the 
hands  of  the  aristocratic  classes.  In  France  the  large  number  of 
small  property  owners  leads  to  a  conservatism  which  is  the  most 
effective  safeguard  of  property  interests.  With  respect  to  this 
matter  there  is  variation  due  to  social  and  political  organization. 
“Political  power  is  vested  in  the  mass  of  citizens ;  but  the  mass 
of  citizens,  in  most  countries,  are  too  busy  or  too  indifferent  to 
obtain  political  knowledge.  Hence  it  arises  that  their  public  affairs 
are  still  managed  for  them,  and  the  direction  of  their  public  policy 
really  determined  by  an  oligarchy  of  one  kind  or  another.  In 


POLITICAL  SAFEGUARDS. 


5 


some  states,  with  a  wide  popular  franchise,  but  an  imperfectly  de¬ 
veloped  constitutional  system,  as  in  Austria  and  Germany,  it  takes 
the  form  of  a  ministry  and  a  civil  service  under  the  control  of  a 
strong  personal  monarchy.  In  the  Latin  countries  it  is  usually 
seen  in  the  shape  of  a  powerful,  all-pervading  bureaucracy.  The 
modern  English  substitute  is  found  in  groups  of  persons  who  pay 
rather  more  continuous  attention  to  public  affairs  than  the  major¬ 
ity  of  the  electors.”  In  England  these  persons  come  primarily 
from  the  leisure  classes.  A  governing  group  has  usually  as  large 
a  share  in  moulding  the  spirit  of  a  government  as  has  a  democratic 
electorate,  although  the  electorate  which  has  final  power  may  in 
the  long  run  be  expected  to  assume  an  increasingly  important  share 
in  the  actual  operation  of  government.  In  some  countries  property 
interests  through  pecuniary  methods  maintain  a  large  political  con¬ 
trol,  but  such  a  safeguard  of  property  is  one  which  must  in  the 
long  run  prove  ineffective. 

(6)  A  check  of  some  effectiveness  is  that  which  comes  from 
guaranties  in  a  written  constitution,  even  though  such  guaranties 
are  not  judicially  enforcible.  A  constitution  may  be  and  usually 
is  regarded  as  of  superior  authority,  even  though  not  judicially 
enforcible,  and  this  is  especially  true  where  the  method  of  consti¬ 
tutional  change  is  more  difficult  than  that  of  ordinary  legislation. 
So,  for  example,  in  Belgium,  the  non- judicially  enforcible  constitu¬ 
tional  guaranties  seem  to  have  something  of  effectiveness. 

(7)  Although  no  effective  means  has  yet  been  devised  for  the 
purpose,  constitutional  guaranties  may  be  enforcible  to  some 
extent  by  other  than  the  judicial  authority.  The  Council  of  Cen¬ 
sors  in  Pennsylvania  and  Vermont  and  the  Scnat  Conservateur 
of  the  French  constitutions  of  1799  and  1852  proved  ineffective, 
but  the  Councils  of  Revision  in  New  York  (1777-1821)  and  Illinois 
(1818-1848)  proved  of  some  effect  in  enforcing  constitutional 
limitations. 

The  so-called  right  of  revolution  or  abstract  right  to  disobey  the 
law  cannot  be  called  safeguards  of  an  important  character,  but  it 
is  of  importance  to  bear  in  mind  that  safeguards  of  property  or 
individual  right  need  not  necessarily  depend  upon  the  distinction 
between  constitution  and  statute,  and  need  still  less  to  depend  upon 
a  judicial  enforcement  of  such  a  distinction.  Nor  need  such  a 
safeguard  have  a  legal  basis  in  order  to  be  effective.  The  safe- 


6 


COLUMBIA  LAW  REVIEW. 


guards  referred  to  above  as  political  ( i .  e.  not  judicially  enforcible) 
fall  really  into  three  classes,  (a)  the  purely  political,  (b)  those  hav¬ 
ing  a  legal  basis,  and  (c)  those  having  a  constitutional  basis;  and 
for  some  countries  to-day  the  purely  political  safeguards  are  the 
most  effective. 

It  may  be  well  to  discuss  briefly  the  political  safeguards  in  Great 
Britain.  This  subject  has  been  vigorously  agitated  during  the  past 
few  years  in  England  in  connection  with  the  passage  of  the  Parlia¬ 
ment  Act  of  1911.  Before  1911  the  House  of  Lords  possessed  the 
power  to  force  a  popular  election  upon  any  important  measure  (not 
financial)  as  to  which  the  popular  will  had  not  been  expressed  in 
a  general  election,  and  it  actually  exercised  this  power  as  against 
measures  proposed  by  the  Liberals,  the  party  most  apt  perhaps  to 
bring  forward  legislation  of  a  radical  character.  The  supporters 
of  the  House  of  Lords  did  not  claim  and  had  not  for  a  long  period 
claimed  power  to  defeat  legislation  which  had  been  approved  by 
the  people,  but  they  did  claim  power  “to  reject  any  bill  of  first 
rate  importance  which  the  House  [of  Lords]  reasonably  and  bona 
fide  believed  to  be  opposed  to  the  permanent  will  of  the  country.”3 
The  function  of  the  House  of  Lords,  so  conceived,  was  that  of 
forcing  an  appeal  to  the  people,  and  advocates  of  the  House  of 
Lords  pointed  with  assurance  to  the  fact  that  the  Lords'  rejection 
of  Irish  Home  Rule  in  1893  was  decisively  supported  in  the  general 
election  of  1895 ;  this  case,  in  the  language  of  Professor  Dicey, 
“means  that  at  a  great  crisis  in  the  fortunes  of  England,  the  heredi¬ 
tary  House  of  Lords  represented,  whilst  the  elected  House  of  Com¬ 
mons  misrepresented,  the  will  of  the  people.” 

Under  the  Parliament  Act  of  1911,  the  control  of  the  Lords 
over  money  bills  is  specifically  denied,  and  as  to  other  bills  the 
Lords'  opposition  may  be  overcome  if  a  bill  is  passed  by  the  Com¬ 
mons  in  three  successive  sessions  provided  “two  years  have  elapsed 
between  the  date  of  the  second  reading  in  the  first  of  those  sessions 
of  the  bill  in  the  House  of  Commons  and  the  date  on  which  it 
passes  the  House  of  Commons  in  the  third  of  those  sessions.”  The 
Lords  thus  have  a  suspensive  veto  for  two  years.  The  Commons 
are  now  elected  for  five  years,  and  are  not  apt  to  be  dissolved 
before  the  expiration  of  that  period,  and  although  elected  upon 
one  issue  may,  during  the  first  three  years,  bring  forward  impor¬ 
tant  measures  not  made  an  issue  in  the  general  election,  and  push 
these  measures  through  before  the  next  general  election.  It  is  this 


aDicey,  Rights  of  Citizenship,  85. 


POLITICAL  SAFEGUARDS . 


7 


situation  which  causes  Mr.  McKechnie  and  Mr.  Dicey  to  say  that 
England  is  subject  to  the  uncontrolled  dominance  of  a  popular 
chamber  and  that  constitutional  safeguards  in  England  have  been 
destroyed.  The  Conservatives  urge  the  organization  of  a  strong 
upper  house  with  greater  power  as  a  remedy  for  this  situation, 
and  also  the  referendum.  The  preamble  to  the  Parliament  Act 
of  1911  promises  tq  “substitute  for  the  Plouse  of  Lords  as  it  at 
present  exists  a  second  chamber  constituted  on  a  popular  instead 
of  hereditary  basis,”  but  this  promise  is  not  likely  to  be  carried 
out  by  a  Liberal  government.  A  more  powerful  second  chamber, 
representing  property  or  aristocratic  interests,  which  could  delay 
or  defeat  the  measures  of  the  Commons,  would  be  a  more  effective 
safeguard  than  the  present  House  of  Lords,  although  such  a  house 
if  organized  would  in  the  end  have  to  give  way  before  a  definite 
expression  of  popular  will  represented  by  the  election  of  a  majority 
to  the  House  of  Commons.  It  is  true  that  no  machinery  exists 
in  England  since  1911  by  which  in  each  case  a  popular  judgment 
may  be  insisted  upon  before  the  enactment  of  an  important 
measure.  It  is  for  this  reason  that  the  referendum  is  urged — 
the  plan  of  submitting  to  the  people  the  specific  question,  divorced 
from  the  complicating  issues  that  present  themselves  in  a  general 
election.  A  greater  popular  participation  is  thus  regarded  as  an 
additional  safeguard  and  would  actually  be  so. 

As  a  matter  of  fact,  the  House  of  Lords  as  a  conservative 
influence  is  perhaps  not  so  powerless  since  1911  as  many  English 
authors  would,  in  their  political  arguments,  have  us  believe.4  The 
Lords  may  delay  a  measure  for  two  years,  and  if  the  measure  is 
presented  within  the  last  two  years  of  the  terms  of  members  of 
the  House  of  Commons,  the  Lords  may  prevent  its  passage  until 
after  the  next  general  election.  Within  the  first  three  years  of 
their  term,  however,  the  Commons  are  legally  limited  only  by 
the  provision  for  a  two-year  delay,  and  during  this  period  the 
English  government  approaches  that  of  a  single  chambered  body 
with  legally  unlimited  powers.  Yet,  politically,  the  influence  of 
the  House  of  Lords  is  apt  still  to  remain  somewhat  large.5 

The  most  important  safeguards  in  England  to-day  are  the 
purely  political  as  opposed  to  the  legal.  In  the  first  place,  no 
House  of  Commons,  even  though  legally  unlimited  during  its  first 

4See  Lowell,  Government  of  England  (New  Edition)  Vol.  1,  433-436. 

6See  remarks  in  Sidney  Low’s  Governance  of  England  (New  Edition, 
1914)  xiv. 


8 


COLUMBIA  LAW  REVIEW . 


three  years  of  service,  is  likely  to  pass  measures  which  it  thinks 
will  meet  with  the  distinct  disapproval  of  the  people  at  the  next 
general  election.  The  general  election  each  five  years  serves  as 
a  general  referendum  and  will  keep  a  popular  chamber  from  getting 
very  far  beyond  what  the  people  will  approve,  although  of  course 
there  is  no  sufficient  check  upon  specific  measures ;  this  safeguard 
is  weakened  though  not  destroyed  by  the  more  effective  party 
discipline  of  the  present  day  and  the  tendency  toward  coalition 
ministries,  in  which  each  group  will  insist  upon  the  passage  of  its 
measure  in  return  for  its  support. 

Mr.  Sidney  Low,  in  dealing  with  this  question,  has  said  re¬ 
cently:  “But  under  a  single-chamber  system,  it  may  be  said,  the 
check  which  an  upper  house  exercises  upon  the  abuse  of  its 
position  by  a  cabinet  would  cease  to  operate.  It  does  not  operate 
very  effectively  at  present  and  it  is  likely  to  grow  weaker.  The 
real  restraint  upon  the  majority  in  the  Commons  is  the  existence 
of  the  Opposition  in  the  House  and  the  Constituencies,  and  the 
knowledge  that  the  sovereign  electorate  can  and  will  call  the  alter¬ 
native  government  into  office  if  it  is  dissatisfied  with  the  conduct 
of  the  group  it  has  placed  in  power.  The  abolition  of  the  second 
chamber  is  not  likely  to  be  seriously  contemplated.  But  if  it  were 
accomplished  it  would  be  a  far  less  revolutionary  change  in  the 
substance,  if  not  the  form,  of  our  system  than  is  commonly  sup¬ 
posed.”  Mr.  Low  does,  however,  favor  the  referendum  as  a 
means  of  expressing  the  popular  will,  when  ministers  are  un¬ 
willing  to  submit  to  a  general  election.  This  is  perhaps  to  say 
that  the  present  organization  in  England  is  not  sufficiently  demo¬ 
cratic,  and  should  have  imposed  upon  it  the  check  of  more 
democracy. 

Most  effective,  however,  is  the  safeguard  resulting  from  the 
fact  that  while  the  electorate  is  democratic,  the  actual  conduct 
of  government  is  in  the  hands  of  the  upper  classes.  So  true,  is 
this  that  a  brilliant  little  book  in  1911  charged  that  the  whole 
party  system  in  England  is  a  pious  fraud  maintained  by  secret 
alliance  among  political  leaders  (aristocratic  and  plutocratic)  for 
the  purpose  of  deceiving  the  people,  and  governing  in  their  own 
interests.  A  quotation  will  make  this  view  clear :  “We  have  to-day 
to  deal  not  with  a  divided  but  with  a  united  plutocracy,  a  homo¬ 
geneous  mass  of  the  rich,  commercial  and  territorial,  into  whose 
hands  practically  all  power,  political  as  well  as  economic  has  now 
passed.  ...  It  [power]  has  passed  to  a  political  committee 


POLITICAL  SAFEGUARDS . 


9 


for  which  no  official  name  exists  (for  it  works  in  secret),  but 
which  may  be  roughly  called  ‘The  Front  Benches’.  This  com¬ 
mittee  is  not  elected  by  vote,  or  by  acclamation,  or  even  by  gen¬ 
eral  consent.  Its  members  do  not  owe  their  position  either  to 
the  will  of  the  House  or  the  will  of  the  people.  It  is  selected 
— mainly  from  among  the  rich  politicians  and  their  dependents 
— by  a  process  of  sheer  and  unchecked  co-optation.  It  forms,  in 
reality  a  single  body,  and  acts,  when  its  interests  or  its  powers 
are  at  stake,  as  one  man.  No  difference  of  economic  interest 
or  of  political  principle  any  longer  exists  among  its  members 
to  form  the  basis  of  a  rational  line  of  party  division.  Neverthe¬ 
less,  the  party  division  continues.  The  governing  group  is  divided 
arbitrarily  into  two  teams,  each  of  which  is,  by  mutual  under¬ 
standing,  entitled  to  its  turn  of  office  and  emolument.  And  a 
number  of  unreal  issues,  defined  neither  by  the  people  nor  by 
the  Parliament,  but  by  the  politicians  themselves,  are  raised  from 
time  to  time  in  order  to  give  a  semblance  of  reality  to  their  empty 
competition.  That  is  the  Party  System  as  it  exists  to-day,  and 
by  it  the  House  of  Commons  has  been  rendered  null,  and  the 
people  impotent  and  without  a  voice.”6  This  was  published  at  a 
time  when  England  was  echoing  with  the  cry  that  all  political 
and  constitutional  safeguards  were  being  destroyed.  The  view 
expressed  above  has  some  apparent  basis.  Let  us  turn  to  less 
exaggerated  statements. 

Writing  in  1904  Mr.  Sidney  Low  said  that  the  English  work¬ 
ingman  has  remained  “generally  faithful  to  the  tradition,  which 
has  prevailed  through  all  English  history,  that  the  conduct  of 
public  affairs  should  be  largely  entrusted  to  those  who  enjoy  the 
advantages  of  birth,  breeding,  and  affluence.”7  More  recently 
President  Lowell  has  said :  “The  fact  is  that  the  upper  classes 
in  England  rule  to-day,  not  by  means  of  political  privileges  which 
they  retain,  but  by  the  sufferance  of  the  great  mass  of  the  people, 
and  as  trustees  for  its  benefit.  Their  leadership  is  highly  popular 
with  the  masses,  but  it  depends  upon  keeping  the  respect  of  the 
nation  by  a  generally  unstained  reputation  for  probity  of  char¬ 
acter;  for  if  that  reputation  were  seriously  impaired  the  ruling 
class  would  soon  be  swept  from  power.  .  .  .  Moreover,  most 

of  the  men  who  play  the  leading  parts  in  the  game  of  politics,  as 
trustees  for  the  people  under  the  public  eye,  have  fought  together 

'Belloc  &  Chesterton,  The  Party  System  (1911)  29,  33-34. 

Tow,  Governance  of  England  (New  Edition,  1914)  174,  176,  190. 


10 


COLUMBIA  LAW  REVIEW . 


in  the  sports  of  schools  and  colleges,  and  are  constantly  meeting 
in  the  society  of  London.  This  in  itself  tends  to  make  them 
play  the  game  fairly,  and  observe  the  conventional  rules  of  honor 
of  the  day.”8  Mr.  Low,  writing  again  in  1913,  says  that  the  demo¬ 
cratic  element  in  Parliament  has  increased,  but  feels  that  condi¬ 
tions  have  not  altered  to  a  great  degree.  He  says :  “A  parliament 
in  King  George  V’s  reign  includes  a  larger  body  of  persons  of 
moderate  means,  persons  who  have  had  to  earn  their  livings  by 
their  own  exertions,  than  any  parliament  in  the  reign  of  Queen 
Victoria.  But  the  socio-political  class,  and  the  descendants  of 
the  ‘governing  families’  are  still  well  represented,  and  if  the 
aristocratic  element  is  declining  the  plutocratic  is  growing 
stronger.” 

It  may  properly  be  said  that  in  England  to-day  there  are  no 
purely  legal  safeguards  upon  government,  but  there  is  the  im¬ 
portant  safeguard  of  a  purely  political  character,  in  that  the  gov¬ 
ernment  is  operated  by  an  upper  class  group,  while  controlled  by 
a  democratic  electorate.  The  non- judicially  enforcible  safeguards 
in  England  are  certainly  less  than  those  in  this  country  and  it  is 
worth  noting  that  the  United  States  has  been  referred  to  in  much 
of  the  British  discussion  as  par  excellence  the  country  of  con¬ 
stitutional  safeguards,  and  this  without  reference  to  the  addi¬ 
tional  fact  that  in  this  country  there  are  judicially  enforcible 
guaranties  of  individual  rights.  It  is  an  interesting  fact  that  in 
the  British  discussion  of  safeguards  in  the  United  States  primary 
attention  has  been  paid  to  checks  and  balances  in  governmental 
organization,  and  little  to  the  judicial  power  to  enforce  constitu¬ 
tional  guaranties. 

Before  taking  up  the  subject  of  judicially  enforcible  guaranties, 
emphasis  should  be  placed  upon  the  fact  that  judicially  enforcible 
guaranties,  in  all  countries  where  they  are  found,  exist  in  con¬ 
nection  with  and  in  addition  to  guaranties  or  safeguards  which 
are  political  or  not  judicially  enforcible.  As  has  already  been 
suggested  the  system  of  judicial  guaranties  in  the  United  States 
supplements  an  elaborate  body  of  political  safeguards  as  well. 
If  an  issue  is  raised  as  to  types  of  guaranties  under  present  con¬ 
ditions,  the  question  would  largely  be  one  as  to  mere  political 
guaranties  on  one  side,  as  opposed  to  political  plus  judicial  guar¬ 
anties  on  the  other. 


Towell,  Government  of  England  (New  Edition)  Vol.  2,  508. 


POLITICAL  SAFEGUARDS. 


11 


2.  Judicial  Guaranties. 

The  doctrine  that  courts  shall  enforce  constitutional  limita¬ 
tions  against  the  legislature  has  now  a  wider  acceptance  than  is 
generally  appreciated.  In  Australia,  Argentina,  Greece,  Norway, 
and  Roumania,  the  courts  enforce  constitutional  limitations  in 
much  the  same  manner  as  they  do  in  the  United  States,  although 
cases  arise  much  less  frequently  than  they  do  with  us.  In  Switzer¬ 
land  the  federal  court  enforces  against  cantonal  legislation  the 
guaranties  in  both  cantonal  and  federal  constitutions.  For  Canada 
a  judicial  control  exists  in  order  to  keep  the  provincial  and 
dominion  legislatures  within  the  limits  of  the  British  North  Amer¬ 
ica  Act.9  The  constitutions  of  Portugal,  Nicaragua,  Honduras, 
Cuba,  Plaiti,  and  Venezuela  expressly  grant  to  the  courts  power 
to  disregard  laws  conflicting  with  the  constitutions,  and  in  several 
other  Latin-American  constitutions  there  are  provisions  which 
imply  a  similar  power.  Too  much  reliance,  however,  must  not 
be  placed  upon  the  declarations  in  some  of  these  constitutions. 
In  Haiti,  where  power  is  conferred  upon  the  courts  in  most 
positive  terms,  it  has  never  been  exercised  and  its  existence  as 
a  reality  is  denied  by  a  recent  author.10  To  complete  the  list, 
it  may  be  added  that  in  Liberia  the  courts  exercise  such  a  power,* 11 
and  that  a  judicial  power  over  legislation  was  asserted  in  the 
Transvaal  in  1896.12 

The  question  of  judicial  control  over  legislation  has  been  dis¬ 
cussed  in  a  number  of  the  European  countries,  more  especially 
in  Belgium,  Germany,  and  France ;  and  French  jurists,  while  deny¬ 
ing  the  present  existence  of  such  a  power  in  France,  are  over¬ 
whelmingly  in  favor  of  the  adoption  of  the  principle  of  judicial 
control.13  In  fact  one  of  the  ablest  of  French  jurists  has  recently 

9In  a  number  of  federal  governments  (Brazil,  Mexico.  vSwitzerland, 
Germany)  there  exists  impliedly  or  expressly  a  judicial  power  to  disregard 
state  laws  which  conflict  with  the  federal  constitution  or  laws,  but  this 
may  be  regarded  more  appropriately  as  a  control  of  superior  over  inferior 
legislation,  rather  than  a  true  judicial  control  over  legislation.  Canada 
belongs  to  this  class  also,  and  in  part  Australia  and  the  United  States. 

10Joseph  Justin,  De  V Organisation  Judiciaire  en  Haiti  (Havre,  1910) 
1 15-120. 

11 1  Liberia  Supreme  Court  Reports,  243. 

12Brown  v.  Leyds,  4  Kotze’s  Reports,  High  Court  South  African  Re¬ 
public,  17.  Cape  Law  Journal,  Vol.  14,  pp.  71,  94>  109.  J.  W.  Gordon  in 
14  Law  Quarterly  Rev.  343. 

13Duguit,  Transformations  du  Droit  Public  (1913)  91-103.  See  also 
Larnaude,  Bulletin  de  la  Societe  de  Legislation  Comparee,  Vol.  31  (1901-2) 
175-229,  240-257. 


12 


COLUMBIA  LAW  REVIEW. 


argued  that  a  judicial  power  to  declare  laws  invalid  exists  as  a 
matter  of  course,  in  the  absence  of  express  constitutional  declara¬ 
tion  to  the  contrary.14 

But  the  issue  under  discussion  in  this  paper  is  not  the  broad 
one  of  judicial  power  to  declare  laws  unconstitutional,  but  the 
narrower  one  as  to  the  use  of  such  a  power  to  enforce  constitu¬ 
tional  guaranties  of  individual  rights  and  of  property.  A  judicial 
power  over  legislation  is  of  no  great  value  for  the  purposes  here 
under  discussion  unless  linked  with  (i)  guaranties  of  individual 
rights,  and  (2)  a  system  which  makes  constitutional  change 
relatively  more  difficult  than  the  process  of  ordinary  legislation. 
Canada  and  Australia  have  no  broad  constitutional  guaranties. 
In  Norway,  Greece,  and  Roumania  the  cases  in  which  constitutional 
guaranties  have  been  judicially  enforced  against  legislative  action, 
though  important,  appear  to  be  relatively  few.  A  ‘  somewhat 
similar  statement  may  be  made  with  respect  to  Argentina.  In 
Switzerland  the  judicial  enforcement,  against  cantonal  legislation, 
of  constitutional  guaranties  in  both  cantonal  and  federal  constitu¬ 
tions,  is  an  active  and  effective  force.  The  United  States,  how¬ 
ever,  and  primarily  the  state  courts  in  the  United  States,  present 
the  longest  experience  with  a  judicial  enforcement  of  constitutional 
guaranties,  and  the  judicial  safeguard  can  be  most  satisfactorily 
discussed  upon  the  basis  of  experience  in  this  country.  For  this 
reason  decisions  from  other  countries  will  be  cited  in  this  paper 
only  so  far  as  they  illustrate  problems  which  have  also  presented 
themselves  in  the  United  States. 

In  the  application  of  judicial  power  over  legislation,  constitu¬ 
tional  limitations  may  be  said  to  fall  into  three  classes : 

(1)  Constitutional  provisions  which  prescribe  a  clear  and 
definite  rule,  capable  of  application  by  a  court  without  any  great 
discretion  as  to  the  interpretation  or  extent  of  the  limitation.  Few 
limitations  fall  within  this  class,  and  these  relate  largely  to  the 
form  of  legislative  action  or  to  specific  prohibitions  upon  certain 
kinds  of  legislation.  Such  for  example  are  constitutional  require¬ 
ments  that  a  bill  shall  be  read  three  times  in  each  house15  and 
that  the  readings  shall  be  entered  upon  the  journals.  Yet  some 
formal  requirements  are  sufficiently  indefinite  to  leave  a  large 
discretion  in  the  court.  Such  a  provision,  for  example,  is  that  of 

14Gaston  Jeze,  Revue  du  Droit  Public  et  dc  la  Science  Politique,  Vol.  29 
(1912)  138. 

“The  requirement  of  three  readings  has  become  a  mere  empty  form. 


POLITICAL  SAFEGUARDS. 


13 


Illinois,  which  requires  that  no  law  shall  be  revived  or  amended 
by  reference  to  its  title  only,  but  the  law  revived  or  the  section 
amended  shall  be  inserted  at  length  in  the  new  act.16  Types  of 
prohibitions  upon  specific  kinds  of  legislation  are  those  prohibit¬ 
ing  special  laws  granting  divorces,  changing  the  law  of  descent, 
and  remitting  fines,  etc. 

(2)  Limitations  not  so  definite,  but  which  yet  provide  some¬ 
thing  of  a  legal  rule  to  guide  the  court.  In  this  class  come  the 
provision  in  the  constitution  of  the  United  States  that  no  State 
shall  pass  any  law  impairing  the  obligation  of  contracts,  and  the 
provisions  in  state  and  federal  constitutions  that  accused  persons 
shall  be  entitled  to  trial  by  jury.  Here  terms  are  used  which 
have  a  fairly  definite  meaning  in  a  legal  system,  and  the  court  in 
applying  the  limitations  is  guided  by  language  which  states  a  legal 
principle. 

(3)  Within  the  third  class  fall  constitutional  limitations  of 
an  indefinite  character  as  that  “no  person  shall  be  deprived  of 
life,  liberty,  or  property  without  due  process  of  law,”  or  that 
“no  person  shall  be  denied  the  equal  protection  of  the  laws,”  or 
that  “private  property  is  inviolate.” 

Constitutional  guaranties  of  personal  or  property  rights  fall 
within  the  second  or  third  classes,  and  there  is  no  tendency  to 
establish  definite  standards  under  such  limitations.  In  fact  there 
has  been  some  tendency  by  judicial  action  to  transfer  provisions 
from  the  second  to  the  third  class.  A  prohibition  of  cruel  and 
unusual  punishments  was  once  supposed  to  forbid  punishments 
cruel  in  form,  but  has  to  a  large  extent  been  transferred  by  the 
courts  into  a  prohibition  of  punishments  which  in  the  opinion  of 
the  court  are  disproportionate  to  the  offense.  The  “due  process 
of  law”  clause  is  the  most  striking  illustration  of  this  develop¬ 
ment.  Once  this  limitation  merely  required  procedure  which 
would  safeguard  individual  rights.  Now  it  requires  in  addition 
legislation  which  in  substance  is  such  as  the  courts  consider  not 
unreasonable.  The  interests  seeking  protection  naturally  desire 
that  protecting  clauses  be  interpreted  as  broadly  as  possible,  and 
in  the  long  run  they  succeed  in  having  their  way. 

But  when  decisions  are  based  upon  broad  constitutional  guar¬ 
anties,  interpreted  as  “due  process  of  law”  is  now  interpreted 

“Ernst  Freund,  Supplemental  Acts — A  Chapter  in  Constitutional  Con¬ 
struction,  8  Illinois  Law  Rev.  507. 


14 


COLUMBIA  LAW  REVIEW. 


by  the  courts,  no  definable  legal  principle  is  laid  down  for  judicial 
guidance.  Since  1886  the  Supreme  Court  of  Illinois  has  in  a 
number  of  important  cases  declared  laws  unconstitutional  as  de¬ 
priving  of  “due  process  of  law”  as  to  the  substance  of  rights 
affected,  yet  the  court  has  not  sought  to  define  “due  process  of 
law”,  and  a  standard  of  classification  which  it  has  accepted  in 
one  case  it  has  rejected  in  another.  Although  the  court  has  re¬ 
jected  a  great  number  of  statutes  on  the  ground  that  they  deprive 
of  due  process  of  law,  it  has  not  determined  upon  any  standard 
to  which  it  will  adhere.  With  no  rules  for  its  guidance,  the 
decision  of  the  court  in  each  particular  case  becomes  the  determina¬ 
tion  of  a  question  of  fact,  and  affords  little  if  anything  of  a 
generalized  legal  principle.  The  Supreme  Court  of  Illinois  has 
so  far  been  consistent  neither  with  itself  nor  with  any  logical  view 
in  matters  of  classification  under  the  “due  process”  clause.  It 
has,  as  yet,  afforded  no  guidance  upon  which  the  general  assembly 
of  Illinois  may  rely;  no  degree  of  care  upon  the  part  of  the 
general  assembly,  even  when  accompanied  by  a  knowledge  of  all 
the  previous  decisions  of  the  court,  is  sufficient  to  determine  in 
advance  whether  legislative  action  will  be  upheld  or  annulled  when 
it  comes  before  the  court.  A  similar  situation  exists  in  practically 
every  other  State,  and  legislation  upheld  by  one  state  court  or 
the  Supreme  Court  of  the  United  States  is  in  other  States  held 
unconstitutional  as  a  deprivation  of  due  process  of  law.17  A 
similar  indefiniteness  appears  in  Switzerland  in  the  enforcement 
against  cantonal  legislation  of  a  guaranty  that  private  property 
shall  be  inviolate.18 

Professor  Raymond  Saleilles,  in  advocating  the  establishment 

17No  attention  is  here  paid  to  the  further  complication  in  the  United 

States  which  arises  from  the  fact  that  both  state  and  national  consti¬ 

tutions  have  “due  process”  of  law  clauses,  upon  both  of  which  a  state 
court’s  decision  is  final,  if  it  declares  a  state  law  unconstitutional.  This 
situation  leads  to  great  difficulty,  but  the  difficulty  is  not  inherent  in  a 
system  of  judicial  enforcement  of  constitutional  guaranties.  It  should 
be  suggested,  however,  that  the  action  of  the  United  States  Supreme  Court 
has  caused  little  difficulty  as  compared  with  that  of  state  courts. 

This  article  was  written  before  the  enactment  by  Congress  of  Public 
Act  224  (approved  Dec.  2.3,  1914)  which  permits  the  Supreme  Court  of 
the  United  States  by  certiorari  to  review  state  decisions  holding  state 
statutes  invalid  as  violating  the  federal  Constitution. 

lsBntscheidungen  des  Schweizerischen  Bundesgerichts,  Vol.  31  (i9°5) 
Part  I,  p.  645;  Vol.  23  (1897)  Part  II,  p.  1001;  Vol.  37  (1911)  Part  I, 

p.  503.  For  similar  development  in  Norway,  see  Morgenstierne,  Staats- 

rechi  des  Koenigreichs  Norzvegen,  115-116.  Excess  condemnation,  pre¬ 
vented  in  the  United  States  and  Argentina  under  the  doctrine  of  “public 
purpose”,  is  prevented  in  Switzerland  on  the  ground  that  it  violates  the 
inviolability  of  property.  Bntscheidungen  etc.,  Vol.  31  (1905)  Part  I,  p. 
645.  See  also  Fallos  de  la  Suprema  Corte  (Argentina)  Vol.  33,  (1888) 
p.  162. 


POLITICAL  SAFEGUARDS. 


15 


of  judicial  control  over  legislation  in  France,  said  in  1902:  “I 
have  not  lost  all  hope  of  having  the  objection  of  unconstitutionality 
apply  in  matters  of  individual  right ;  but  on  the  one  condition  that 
it  be  restricted  to  rights  which  may  be  not  only  affirmed  in  the 
constitution,  but  strictly  defined  in  their  existence,  in  their  juridical 
contour,  and  in  the  conditions  of  their  application.”19  Can  such 
rights  be  strictly  defined  and  made  judicially  enforcible?  The  pro¬ 
tection  of  fundamental  rights  can  hardly  be  reduced  to  a  definite 
rule.  When  such  a  principle  becomes  capable  of  definite  judicial 
or  legal  formulation  it  ceases  to  perform  its  intended  purpose,  for 
its  purpose  is  to  mark  the  line  between  private  right  and  public 
interest,  and  this  line  is  a  constantly  shifting  one.  Mr.  Justice 
Holmes  recently  remarked  that :  “With  regard  to  the  police  power, 
as  elsewhere  in  the  law,  lines  are  pricked  out  by  the  gradual 
approach  and  contact  of  decisions  on  the  opposing  sides.”20  But 
while  the  lines  are  being  pricked  out  the  pattern  is  changing.  A 
rule  once  definitely  formulated  would  in  all  likelihood  be  so  broad 
as  to  require  removal  because  unduly  restrictive  of  legislative 
power  or  so  narrow  as  to  be  innocuous.  The  judicial  enforce¬ 
ment  of  constitutional  guaranties  almost  necessarily  implies  broad 
undefined  and  undefinable  limitations  enforcible  by  the  courts  in 
the  cases  where  they  think  proper,  without  the  development  of 
definite  juridical  standards.  Such  has  been  the  experience  of 
the  past  and  is  likely  to  be  that  of  the  future.  The  point  of 
view  of  the  courts  in  applying  such  guaranties  changes,  and  has 
changed  materially  in  this  country  within  the  past  ten  years,  yet 
the  guaranties  themselves  remain  as  indefinite  as  ever. 

The  problem  of  judicially  enforcible  constitutional  guaranties 
is  therefore  a  problem  of  judicial  discretion  in  the  interpretation 
of  indefinite  constitutional  limitations.  An  effective  theoretical 
argument  can  readily  be  made  for  judicial  enforcement  of  con¬ 
stitutional  limitations,  for  in  modern  governments  the  legislature 
is  the  body  which  acts  positively  in  the  development  of  new 
policies  and  is  therefore  most  apt  to  transgress  constitutional 
limitations,  whereas  the  courts  act  negatively  and  do  not  ordi¬ 
narily  develop  new  policies.21  Yet  in  enforcing  broad  limita- 

19Bulletin  de  la  Societe  de  Legislation  Comparee,  Vol.  31  (1901-2) 
240-246. 

“Noble  State  Bank  v.  Haskell  ( 191 1 )  219  U.  S.  104. 

21It  may  be  well  to  suggest  that  in  Germany  the  movement  for  judicial 
control  over  legislation  has  largely  related  to  the  formal  requisites  of 
enactment,  and  was  originally  intended  to  protect  the  legislature  by 
limiting  the  power  of  the  monarch  to  promulgate  as  law  measures  which 
had  not  been  approved  by  the  legislative  bodies. 


16 


COLUMBIA  LAW  REVIEW. 


tions  according  to  their  own  discretion  courts  are  positively  de¬ 
termining  policy,  just  so  far  as  they  succeed  in  preserving  existing 
conditions  and  in  checking  new  legislation.  The  policy  is  no  less 
determined  because  it  is  determined  by  action  which  limits,  rather 
than  by  action  which  constructs. 

Judicial  enforcement  of  broad  constitutional  guaranties  must 
be  tested,  and  must  justify  itself,  as  must  every  other  political 
institution,  not  on  theoretical  grounds  but  by  its  actual  results. 
And  in  an  effort  so  to  test  it  we  should,  so  far  as  possible  remove 
from  our  minds  predispositions  in  favor  of  the  system  because  it 
is  one  to  which  we  have  been  accustomed.  No  one  can  satisfac¬ 
torily  discuss  the  value  of  an  institution  if  he  regards  it  as  sacred. 
We  must  remember  that  most  of  our  accepted  judicial  arguments 
and  political  theories  have  been  developed  to  support  already 
existing  political  institutions.  Lest  we  give  too  much  weight  to 
such  arguments  and  such  theories,  it  should  be  borne  in  mind 
that,  had  the  institutions  been  different,  equally  as  satisfactory 
arguments  and  theories  would  have  developed  to  support  the  dif¬ 
ferent  institutions. 

In  discussing  the  value  of  judicial  enforcement  of  constitutional 
guaranties  it  should  also  be  borne  in  mind  that  the  courts  of  the 
United  States  in  passing  upon  the  validity  of  statutes  have  sub¬ 
stantially  discarded  the  doctrine, — laid  down  in  earlier  cases,  and 
still  repeated, — that  the  power  to  declare  an  act  unconstitutional 
is  a  solemn  and  extraordinary  function  to  be  exercised  (i)  only 
in  case  of  clear  necessity,  (2)  as  an  incident  to  a  bona  fide  con¬ 
troversy  between  parties,  and  (3)  only  in  case  the  conflict  between 
the  statute  and  the  constitution  is  clear  beyond  a  reasonable  doubt. 
The  statement  that  the  conflict  must  be  clear  beyond  a  reasonable 
doubt  becomes  meaningless  when  the  constitutional  provision  ap¬ 
plied  does  not  itself  state  a  defined  principle,  but  is  to  be  inter¬ 
preted  according  to  the  discretion  and  opinion  of  the  judge.  In 
most  important  cases  involving  the  constitutionality  of  statutes 
to-day  the  rights  of  the  parties  are  incidental,  and  the  important 
issue  is  the  trial  of  the  statute  itself.  A  function  cannot  remain 
a  solemn  and  extraordinary  one  when  it  is  being  performed  every 
day.  In  the  State  of  Illinois  alone,  seven  hundred  and  eighty- 
nine  cases  since  1870  have  involved  constitutional  questions,  and 
one  hundred  and  fifteen  of  these  cases  involved  the  “due  process 
of  law”  clause ;  statutes  were  declared  unconstitutional  in  two  hun¬ 
dred  and  fifty-seven  cases. 


POLITICAL  SAFEGUARDS. 


17 


Assuming  the  situation  to  be  what  it  is  in  the  United  States, 
let  us  discuss  briefly  some  of  the  actual  aspects  of  judicial  enforce¬ 
ment  of  broad  constitutional  guaranties  in  this  country.  It  has 
already  been  suggested  that  the  courts  have  not  developed  and 
are  not  likely  to  develop,  any  definite  legal  standards  to  be  applied 
in  the  enforcement  of  broad  constitutional  guaranties.  This  means, 
of  course,  an  uncertainty  as  to  the  precise  amount  of  constitu¬ 
tional  protection.  It  may  be  well  to  repeat  that  constitutional 
guaranties  as  applied  operate  primarily  to  protect  property  rights. 
So  far  as  purely  individual  rights  are  concerned,  constitutional 
guaranties  have  proven  largely  ineffective.22  Cases  under  immigra¬ 
tion  and  white  slave  statutes  illustrate  this  point.  The  constitu¬ 
tion  of  West  Virginia  is  most  elaborate  in  its  subordination  of 
the  military  to  the  civil  authority.  Yet  recent  experiences  show 
that  constitutional  safeguards  were  ineffective  to  protect  indi¬ 
viduals  against  military  power.  During  our  Civil  War  constitu¬ 
tional  guaranties  fell  into  abeyance,  and  the  only  real  limitation 
upon  governmental  authority  was  that  imposed  by  the  necessity 
of  keeping  the  support  of  the  people.  This  situation  was  not 
altered  by  the  fact  that  the  United  States  Supreme  Court,  after 
the  war  had  ended,  boldly  declared  that,  “The  Constitution  of  the 
United  States  is  a  law  for  rulers  and  people,  equally  in  war  and 
in  peace,  and  covers  with  its  shield  of  protection  all  classes  of 
men,  at  all  times  and  under  all  circumstances.”  It  may  be  urged 
that  these  statements  relate  to  strenuous  times,  and  that  constitu¬ 
tional  safeguards  must  not  be  judged  by  such  conditions.  Yet 
rights  need  protection  only  at  a  time  when  there  is  danger  of 
their  violation,  and  a  safeguard  which  fails  at  such  a  time  is 
not  of  great  practical  value.  Writers  on  American  constitutional 
law  have  often  made  fun  of  guaranties  in  some  European  con¬ 
stitutions  which  are  in  terms  subject  to  suspension  upon  extra¬ 
ordinary  occasions.  We  adopt  the  same  practice  but  seek  to 
conceal  it  from  ourselves.  Turning  to  guaranties  operative  in 
peaceful  times,  it  must  be  admitted  that  to  a  large  extent  jury 
trial  has,  through  the  action  and  approval  of  the  courts  themselves, 
been  encroached  upon  as  a  means  of  proceeding,  at  least  in  the 
field  of  public  morals.  Broad  guaranties  such  as  those  of  “due 

S2Where  the  right  is  sufficiently  well  established  in  fact,  it  exists  and 
is  respected  without  much  reference  to  constitutional  limitations.  Such, 
for  example,  is  the  right  to  religious  liberty.  Where  the  right  is  not 
sufficiently  well  established  in  fact,  constitutional  guaranties  do  not  prove 

effective. 


18 


COLUMBIA  LAW  REVIEW. 


process  of  law”  and  “equal  protection  of  the  laws,”  intended  in 
large  part  to  protect  individual  right,  have  been  turned  primarily 
into  instruments  for  the  protection  of  property. 

But  to  what  extent  has  the  judicial  application  of  constitutional 
guaranties  protected  property  rights?  Under  “due  process  of  law” 
the  protection  has  been  haphazard  and  irregular.  Take,  for  ex¬ 
ample,  the  rule  evolved  from  the  “due  process”  clause  that  taxation 
may  only  be  employed  for  a  public  purpose.  The  doctrine  of 
public  purpose  was  developed  in  such  a  manner  as  to  prevent 
substantially  none  of  the  abuses  of  loans  of  public  credit.  Inter¬ 
ference  with  property  rights  has  to  some  extent  been  prevented 
under  the  “due  process”  clause  in  such  matters  as  railroad  rate 
regulation,  but  in  other  fields  of  public  regulation  of  property 
there  has  been  no  assurance  of  real  protection.23  The  courts, 
even  under  the  broadest  of  constitutional  guaranties,  cannot  de¬ 
stroy  all  legislation  which  they  regard  as  unwise.  They  are  very 
apt  to  sustain  much  unwise  and  burdensome  legislation,  which 
should  never  have  been  enacted.  So,  for  example,  legislation 
requiring  an  additional  man  upon  each  train  crew  is  apt  to  be 
sustained,  irrespective  of  facts  that  may  make  the  enactment 
highly  unwise.  And  so  far  as  fundamental  property  rights  are 
concerned  it  is  probably  true  that  when  the  matter  becomes  a 
politically  important  problem,  the  courts  will  be  prepared  to  up¬ 
hold  laws  which  bring  about  a  redistribution  of  property  through 
the  regulation  of  succession.  Property  in  America  uses  judicial 
guaranties  so  far  as  possible,  and  gets  what  protection  it  can 
through  them  but  does  not  rely  upon  them  primarily  for  its  pro¬ 
tection. 

Judicial  enforcement  of  broad  constitutional  guaranties  must 
be  judged  not  in  detail  but  by  its  results  as  a  whole  and  it  is 
true  that  a  large  mass  of  undesirable  legislation  has  been  defeated. 
Yet  the  value  of  the  system  must  be  determined  by  weighing  its 
advantages  against  its  disadvantages,  and  a  large  mass  of  useful 
legislation  has  been  retarded  or  defeated,  while  at  the  same  time 
judicial  control  has  been  ineffective  as  a  means  of  checking  vicious 
and  unwise  legislation.  Take  decisions  for  any  one  year  or  for 
any  one  State  through  a  series  of  years,  place  on  one  side  legisla¬ 
tion  which  you  may  regard  as  unwise,  and  on  the  other  what 
remains ;  there  is  no  assurance  that  most  of  your  cases  of  uncon- 

23See,  for  example,  the  special  burdens  imposed  upon  railroads  by  the 
series  of  cases  of  which  the  latest  is  Missouri  Pacific  Ry.  v.  Omaha  (Nov. 
30,  1914)  35  Sup.  Ct.  Rep.  82. 


POLITICAL  SAFEGUARDS. 


19 


stitutionality  will  deal  with  the  first  class.  Some  unwise  and 
some  wise  legislation  will  be  blocked,  but  the  balance  will  not 
clearly  be  against  the  unwise. 

Moreover,  the  system  of  judicial  enforcement  tends  to  over¬ 
emphasize  the  question  of  constitutionality  as  against  questions 
of  wisdom  and  expediency,  and  reduces  materially  the  responsi¬ 
bility  which  should  rest  upon  legislature  and  people  for  the  justice 
of  legislation.  The  existence  of  the  judicially  enforcible  guaranty 
weakens  other  safeguards,  which  in  many  cases  would  afford 
greater  protection  than  the  judicial  one.24  In  addition  the  legis¬ 
lature  has  no  standard  to  which  it  may  adhere  with  safety,  and 
cannot  outline  a  consistent  policy  of  legislation  because  it  must 
constantly  experiment  in  order  to  discover  what  the  courts  will 
sustain. 

Much  has  been  said  recently  about  the  fact  that  in  passing  upon 
constitutionality  on  the  basis  of  broad  guaranties  courts  are  acting 
in  a  political  or  policy  determining  capacity,  and  this  point  of  view 
has  been  exaggerated  in  Mr.  Brooks  Adams’  Theory  of  Social 
Revolutions.  Opposition  to  judicial  control  over  legislation  has 
existed  only  when  the  courts  have  run  counter  to  the  sober  senti¬ 
ment  of  the  community.  Where  the  courts  have  sought  to  solve 
important  political  questions  by  judicial  decision  they  have  clearly 
failed.  Where,  in  other  matters,  the  judicial  attitude  has  not 
accorded  with  the  sentiment  of  the  community,  the  view  of  the 
community  rather  than  that  of  the  courts  has  in  the  long  run 
prevailed.  Yet  when  the  opposition  has  occurred,  the  courts  have 
lost  something  of  popular  respect  and  have  been  drawn  into  the 
political  arena. 

3.  Comparison  of  political  and  judicial  guaranties. 

The  United  States  has  a  system  of  political  plus  judicial  guar¬ 
anties  as  contrasted  with  a  system  of  political  guaranties  existing 
in  most  of  the  other  important  countries.  To  what  extent  may  the 
relative  values  of  the  two  systems  be  determined  on  the  ground 
(1)  of  a  protection  of  individual  and  property  rights,  and  (2)  of 
a  freedom  upon  the  part  of  the  government  to  meet  new  con¬ 
ditions?  No  basis  of  comparison  exists  because  the  question  is 
not  one  as  to  whether  protection  of  property  and  individual  rights 
is  more  adequate  in,  say  Great  Britain,  France  or  Germany,  than 
it  is  in  the  United  States.  The  protection  of  property  and  indi- 


^Upon  this  whole  matter,  see  Thayer,  John  Marshall,  102- no. 


20 


COLUMBIA  LAW  REVIEW . 


vidual  rights  may  be,  and  probably  is,  more  adequate  in  these 
countries.  The  question  is  rather,  would  these  rights  have  been 
as  well  protected  in  the  United  States,  in  the  absence  of  judicial 
guaranties?  And  in  answer  to  this  one  can  only  resort  to  con¬ 
jecture. 

In  Great  Britain  and  in  the  countries  of  western  Europe 
property  rights  and  class  distinctions  are  based  upon  traditions 
which  run  back  for  centuries.  In  this  country  the  existence  of 
judicial  guaranties  has  led  to  a  greater  sense  of  security  upon  the 
part  of  property,  and  judicial  power  has  doubtless  been  of  value 
in  a  community  such  as  ours  where  there  were  no  traditional  safe¬ 
guards  of  property. 

To  what  extent  has  legislative  discretion  in  meeting  new  con¬ 
ditions  been  more  restricted  under  judicial  than  under  political 
guaranties  ?  In  this  respect  it  may  be  said  that  in  the  long  run  the 
results  under  the  two  systems  are  not  materially  dissimilar.  As 
already  suggested,  the  sober  sentiment  of  the  community  finally 
prevails  in  this  country  where  it  comes  into  conflict  with  judicial 
decisions.  To  some  extent  desirable  legislation  may  be  retarded 
and  for  a  time  destroyed,  as  was  in  part  true  of  truck  legislation 
in  the  United  States,  and  our  legislatures  may  be  prevented  by 
judicial  interference  from  outlining  a  consistent  program  of 
reform.  The  movement  for  social  and  industrial  legislation  in 
the  United  States  began  later  than  in  Europe  and  because  of  our 
social  conditions  it  has  not  progressed  as  far,  yet  in  reading  such 
works  as  those  of  Dicey  and  Duguit25  one  is  impressed  with  the 
fact  that  the  development  in  the  United  States,  so  far  as  it  has 
gone,  has  not  been  very  different  from  that  in  England  and 
France. 

Our  courts  have  in  many  matters  prevented  a  consistent  legis¬ 
lative  policy,  and  have  interfered  with  particular  types  of  legisla¬ 
tion,  so  that  in  the  United  States  we  have  at  almost  every  stage 
in  the  development  of  new  policy  been  subject  to  material  retarda¬ 
tion  ;  yet,  although  retarded  and  to  some  extent  defeated  in  detail, 
the  general  legislative  policy  has  won  acceptance.  To  what  extent 
the  retardation  in  itself  has  been  desirable  it  would  be  hard  to 
say,  yet  it  must  be  admitted  that  any  gain  in  this  respect  has 
been  in  large  part  offset  by  the  loss  to  the  courts  themselves  in 
public  esteem  and  confidence.  The  final  success  of  legislative 

“Dicey,  Law  and  Public  Opinion  in  England  during  the  Nineteenth 
century.  Leon  Duguit,  Transformations  Generates  du  Droit  Prive  depuis 
le  Code  Napoleon  (1912). 


POLITICAL  SAFEGUARDS. 


21 


policies  which  have  met  with  judicial  opposition  has  come  (i) 
either  because  the  courts  themselves  have  departed  from  the  views 
which  they  first  expressed,  or  (2)  because  judicial  opposition  has 
been  overcome  by  constitutional  change. 

A  very  great  change  has  taken  place  in  the  attitude  of  state 
courts  during  the  past  ten  years,  and  they  are  now  upholding 
legislation  which  a  few  years  ago  they  would  probably  have  de¬ 
clared  unconstitutional.  Except  for  one  or  two  rather  unfortunate 
lapses,  the  Supreme  Court  of  the  United  States  has  taken  a 
liberal  attitude  toward  legislation  aimed  to  meet  new  social  and 
industrial  conditions.  A  statement  of  Mr.  Justice  Holmes  sums 
up  what  is  becoming  the  attitude  of  the  courts :  “It  may  be  said 
in  a  general  way  that  the  police  power  extends  to  all  the  great 
public  needs.  ...  It  may  be  put  forth  in  aid  of  what  has  been 
sanctioned  by  usage,  or  held  by  the  prevailing  morality  or  strong 
and  preponderant  opinion  to  be  greatly  and  immediately  neces¬ 
sary  to  the  public  welfare.”26 

When  the  court  misinterprets  the  community  need  in  holding 
a  statute  unconstitutional,  the  effect  of  such  a  decision  is  apt  in 
time  to  be  overcome  by  the  court  itself,  either  by  a  gradual  shifting 
of  attitude  or,  less  frequently,  by  an  express  reversal  of  decision. 
Courts  in  changing  their  attitude  do  not  move  in  a  straight  line, 
and  their  later  views  may  not  be  logically  consistent  with  their 
earlier  ones.  But  “the  life  of  the  law  has  not  been  logic ;  it  has 
been  experience.  The  felt  necessities  of  the  time,  the  prevalent 
moral  and  political  theories,  intuitions  of  public  policy,  avowed  or 
unconscious,  even  the  prejudices  which  judges  share  with  their 
fellow  men,  have  had  a  good  deal  more  to  do  than  the  syllogism  in 
determining  the  rules  by  which  men  should  be  governed.”27 

But  the  change  of  attitude  upon  the  part  of  a  court  usually 
takes  some  time,  and  it  is  often  necessary  to  overcome  promptly 
the  effect  of  a  decision  based  upon  broad  constitutional  guaran¬ 
ties.  So  it  becomes  necessary  for  the  people  by  constitutional 
change  to  authorize  the  policy  of  which  the  court  has  disapproved. 
When  the  Colorado  Supreme  Court  held  the  fixing  of  an  eight 
hour  day  for  mines  and  smelters  invalid  as  a  deprivation  of  due 
process  of  law,  the  state  constitution  was  so  changed  as  expressly 
to  provide  for  such  legislation.  And  when  the  Court  of  Appeals 
of  New  York  declared  a  compulsory  workmen’s  compensation  law 

26Noble  State  Bank  v.  Haskell  (1911)  219  U.  S.  104. 

"Holmes,  The  Common  haw,  1. 


22 


COLUMBIA  LAW  REVIEW. 


a  deprivation  of  property  without  due  process  of  law,  a  state  con¬ 
stitutional  amendment  was  adopted  expressly  authorizing  such 
legislation.  Even  the  cumbersome  machinery  for  the  amendment 
of  the  national  Constitution  was  brought  into  operation  to  over¬ 
come  a  decision  of  the  United  States  Supreme  Court  denying, 
partly  in  the  interest  of  property,  the  power  of  the  national  gov¬ 
ernment  to  levy  an  income  tax. 

Under  a  system  of  judicial  guaranties  the  lines  between  public 
interest  and  private  right  are  redefined  in  part  through  the  chang¬ 
ing  interpretations  of  the  courts  themselves.  In  case  the  interpre¬ 
tation  of  the  court  conflicts  with  the  sentiment  of  the  community 
the  issue  comes  into  the  political  field  and  sometimes  threatens  the 
independence  of  the  court  itself.  Yet  the  danger  here  may  easily 
be  over-emphasized,  and  is  indeed  not  very  great  if  the  judges  be 
intelligent.  When  the  courts  mistake  the  sober  view  of  the  com¬ 
munity  as  to  the  public  interest,  their  decisions  may  be  overcome 
by  constitutional  amendments  in  which  the  community  view  ex¬ 
presses  itself.  The  judicial  limitation  is,  then,  a  limitation  of 
democracy,  not  a  limitation  against  democracy,  if  the  machinery 
of  constitutional  change  is  workable  without  great  difficulty.28 
With  the  great  difficulty  of  amending  the  national  Constitution 
an  unwise  national  court  has  power  to  impose  permanent  and  bur¬ 
densome  limitations  upon  both  state  and  national  action,  through 
its  interpretation  of  broad  constitutional  guaranties.  A  somewhat 
similar  statement  applies  to  Illinois,  whose  constitution  is  very 
difficult  to  amend.  Under  conditions  such  as  these,  judicial  guar¬ 
anties  approach  the  position  of  permanent  limitations  against 
democratic  government.  Only  the  wisdom  of  the  Supreme  Court 
of  the  United  States  has  prevented  the  guaranties  in  the  national 
Constitution  from  serving  this  purpose. 

If  constitutions  be  easily  amendable,  the  judicial  enforcement 
of  broad  constitutional  guaranties  is  not  objectionable,  and  has 
some  useful  features.  The  system  of  judicial  guaranties  has  in 
many  cases  worked  badly,  and  it  is  hardly  as  important  in  the 

^As  a  matter  of  fact,  there  is  a  tendency  in  many  States  to  weaken  the 
distinction  between  forms  of  constitutional  and  statutory  enactments,  and 
in  six  States  constitutional  amendments  may  be  proposed  and  adopted 
through  the  initiative  and  referendum  in  precisely  the  same  manner  as 
statutes.  Under  such  conditions  the  importance  of  a  state  constitutional 
guaranty  is  likely  to  diminish.  In  some  of  the  Swiss  cantons  the  methods 
of  constitutional  and  statutory  enactment  are  substantially  the  same,  yet 
the  federal  court  enforces  the  guaranties  in  the  cantonal  constitution 
against  cantonal  legislation.  Entscheidungen  des  Schweizerischen  Bun- 
desgerichts,  Vol.  37  (1911)  Part  I,  pp.  518-519. 


POLITICAL  SAFEGUARDS. 


23 


protection  of  individual  and  property  rights  as  is  ordinarily 
assumed.  Yet  all  human  institutions  work  to  some  extent  badly, 
and  the  fact  that  one  system  works  badly  does  not  mean  that 
another  should  be  adopted,  for  transplanted  institutions  seldom 
work  as  well  as  native  ones.  The  system  of  judicial  guaranties 
has  become  so  much  a  part  of  our  governmental  organization  that 
its  abolition  might  lead  to  unforeseen  and  undesired  results.  The 
case  may  be  one  in  which  we  should  continue  as  an  existing  insti¬ 
tution  a  form  of  organization  which,  were  we  starting  anew,  we 
would  not  establish.  For  this  reason  we  cannot  completely  agree 
with  the  view  expressed  by  the  leading  authority  upon  the  con¬ 
stitution  of  the  Netherlands:  “We  would  act  wisely  by  simply 
putting  this  question:  To  which  power  (in  the  state)  can  the 
final  decision  in  regard  to  the  true  meaning  of  the  provisions  of 
the  constitution  be  best  entrusted  ?  The  answer  to  this  question,  it 
seems  to  me,  need  not  everywhere  be  the  same,  for  the  peculiar 
character  of  the  legislative  and  judicial  power  in  different  coun¬ 
tries  may  easily  have  great  influence  on  the  decision.  So  far  as 
our  own  state  is  concerned,  I  readily  admit  that  the  decision  is  a 
matter  of  indifference  to  me,  and  I  would  view  with  equal  uncon¬ 
cern  the  testing  right  entrusted  to  or  withheld  from  the  judge.”29 

W.  F.  Dodd. 

University  of  Idunois. 

“Buys,  De  Grondwet,  Art.  121,  Clause  2. 


I 


V 


ililili;: 


